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    Study Unit 1: General Introduction

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    Dylan Banks
    This document distinguishes between laws and the Law. Laws refer to acts of parliament, provincial legislation, and municipal by-laws. The Law refers to the common law, statutory law, indigenous law, and case law. It also distinguishes between an Act, which is parliamentary or provincial legislation, and an act, which is a conduct or action. The main sources of law are listed as the common law, case law, indigenous law, and legislation. Legislation is defined as written law enacted by an authorized body. Legislation plays an important role in common law systems by providing codified laws to address issues that common law cannot, like technological advances. Proper interpretation of statutes considers the structure, language,

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    Study Unit 1: General Introduction

    Uploaded by

    Dylan Banks
    60 views16 pages
    This document distinguishes between laws and the Law. Laws refer to acts of parliament, provincial legislation, and municipal by-laws. The Law refers to the common law, statutory law, indigenous law, and case law. It also distinguishes between an Act, which is parliamentary or provincial legislation, and an act, which is a conduct or action. The main sources of law are listed as the common law, case law, indigenous law, and legislation. Legislation is defined as written law enacted by an authorized body. Legislation plays an important role in common law systems by providing codified laws to address issues that common law cannot, like technological advances. Proper interpretation of statutes considers the structure, language,

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    IURI 213 SU 1

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    This document distinguishes between laws and the Law. Laws refer to acts of parliament, provincial legislation, and municipal by-laws. The Law refers to the common law, statutory law, indigenous law, and case law. It also distinguishes between an Act, which is parliamentary or provincial legislation, and an act, which is a conduct or action. The main sources of law are listed as the common law, case law, indigenous law, and legislation. Legislation is defined as written law enacted by an authorized body. Legislation plays an important role in common law systems by providing codified laws to address issues that common law cannot, like technological advances. Proper interpretation of statutes considers the structure, language,

    Copyright:

    © All Rights Reserved
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    Download as pptx, pdf, or txt
    60 views16 pages

    Study Unit 1: General Introduction

    Uploaded by

    Dylan Banks
    This document distinguishes between laws and the Law. Laws refer to acts of parliament, provincial legislation, and municipal by-laws. The Law refers to the common law, statutory law, indigenous law, and case law. It also distinguishes between an Act, which is parliamentary or provincial legislation, and an act, which is a conduct or action. The main sources of law are listed as the common law, case law, indigenous law, and legislation. Legislation is defined as written law enacted by an authorized body. Legislation plays an important role in common law systems by providing codified laws to address issues that common law cannot, like technological advances. Proper interpretation of statutes considers the structure, language,

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    STUDY UNIT 1

    GENERAL INTRODUCTION
    Distinction between a law and the Law:
    a law
     Acts of parliament
     Provincial legislation
     Municipal by-laws
    the law

     Common law
     Statutory law
     Indigenous law
     Case law
    Distinction between an Act and an act:
    a parliamentary statute or the legislation of a provincial legislature.

    Conduct or action
    Sources of law
    Sources of law

    Common law Case law

    Indigenous law legislation


    Afdwingbaar met ‘n aksie / Enforceable with an action
    • Common law : rules of law which were not originally written down but were
    accepted as the law of the land.
    • Case law : (judicial precedent) courts of equal status and inferior courts are
    bound to apply the legal principles as set down by superior courts in earlier
    cases where the facts are of sufficient similarity.
    • Indigenous law : the traditional laws of the indigenous black people of
    South Africa.
    • Legislation : written statutes enacted by a body or a person authorized to
    do so by the constitution or any other legislation.
    Legislation as a source of law

    Define legislation

    Legislation refers to written law enacted by a


    body or a person with the authority to do so.
    The
    Therole
    roleofoflegislation
    legislationinincommon
    commonlaw
    lawlegal
    legal
    systems
    systems

    In contrast with common law, legislation is easy to find and access


    because it is codified.
    As a result of the rapid changes in modern society that the common
    law cannot deal with e.g. advances in technology, we need more
    legislative intervention.
    What is the interpretation of statutes?

    • Juridical understanding of legislation.


    • Rules,principles,methods and techniques available to the
    interpreter.
    • Not a mechanical like rule.
    • Structure,language,constitutional and fundamental
    human rights to be taken into consideration.
    Some issues that need to be considered in
    interpreting statutes.

    The provision must be read within the


    framework k of the constitution.
    Is the legislation still in force?
    Provision read in light of the whole Act
    t ex t?
    e co n
    t is t h
    W h a Other external aids
    Practical examples

    Right to life

    S v Makwanyane Right to life Means that the state may not take a
    1995 (3) SA 391 (CC) persons life in retribution.

    Soobramoney v Right to life Does not mean that one is entitled to


    Minister of Health prolonged treatment at the states
    1998(1) SA 765 (CC) expense.

    Also look at the following cases;


     Carmichele v Minister of safety and security
    2001 (4) SA 938 (CC)
     S v Walters 2002 (4) SA 613 (CC)
    Intention/Purpose of the legislature?

    • The legislature comprises of a large number of persons,


    all who take part in the legislative process. What could
    be the danger here?

    Opposition

    party unity

    politicians and abstinence


     The intent of the legislature is the fictional
    collective intent of the majority of the
    legislative body present at the time when
    the vote took place, expressing their will
    within the constraints of the voting
    guidelines laid down by the caucus of the
    ruling party in the legislature and voting for
    draft legislation formulated by legal drafters
    on the advice of bureaucrats from a
    government department.
    The new constitutional order

     Constitution is lex fundamentalis .


     Parliamentary supremacy replaced by constitutional
    supremacy.
     Interpretation of statutes was transformed by six provisions of
    the constitution.
     Sec 1 : foundational provision
     Sec 2 : supremacy clause
     Sec 7 : obligation clause
     Sec 8 : application clause
     Sec 36: limitation clause
     Sec 39 : interpretation clause
    End of StudyUnit 1

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